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tv   In Depth  CSPAN  October 11, 2014 9:00am-12:01pm EDT

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up next offering supreme court expert joan biskupic. the legal affairs editor talks about the politics of court nominations and positions and justices whose lives she explored. the correspondent for congressional becoming usa today and the "washington post" has written three biographies including sandra day o'connor and her 2014 release on justice sotomayor, "braking -- breaking in. .. what's that from? >> guest: that was my earlier subject, antonin scalia who said it kiddingly after justice on the sotomayor shook up a party
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by getting all the justices to dance the salsa with her. i use it to set the scene of a contrast it's been between the woman who i is a genuine, somersaults come into this institution that's a wonderfully traditional, used to certain rhythms. the rhythms frankly our salsa. she and she did this wonderful displays that show everybody up, the end of term party, and justice belly at usually shakes people up, he says she can be trouble. it was a perfect line for a little bit of what greeted her there. >> host: did you go to that party? >> guest: no. it was tough to get the information. you know how secretive this court is. a lot of people aren't aware of how we never know what goes on in the conference, journalists are never invited to the end of
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term party. chief justice john roberts sent out invitations for this particular party he reminded all the staff, it was just full time staff, no contractors or part-timers, it is a very tight family. all the justices are appointed for life, many of the employees are too so i was not at the party but after it occurred, a good source of mine told me about this incident, breaking though quorum after law clerks--the entertainment, justices it with other people and what judge. she broke decorum by putting on soft music and getting everybody to dance with her. i started snooping around, and other justices told me about it and somebody gave me the actual program and i went to individuals who i knew where is there and talk to the justices themselves about how they felt
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about it so in my end knows i say journalists are not allowed their, most people are not allowed their but i recreated it. >> host: in reading it from "breaking in: the rise of sonia sotomayor and the politics of justice" it sounded a little uncomfortable. >> yes. the mic things, the supreme court is a very planned institution, and the justices start their term they start at 10:00 on the dodd. if there thirty-second late. and spectators get, and down to the second, and and certain expectations, who goes here or there, they line up according to their role in life.
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reporters lined up one place, lawyers line up in another place, justices come in through the back. everyone has a place to go. at this end of the term party has been going on forever. law clerks put on their little petty's and the justices themselves do not perform. they are not be performing what generally speaking sell sonia sotomayor does this and it rattles everyone and they are trying to figure out what do we do? there is a lot of nervous laughter. people get into it and then people start to laugh and cry and if you justices told me as she approached me i thought i am not going to get up and dance. then they get. and it was a party. it happens to come at the end of a very difficult term. this was in june of 2010, this was the term of citizens united,
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the term in which marty ginsburg, the husband of roots dating ginsberg was very ill and he actually died three days before this party so with bated ginsberg had just endured the most fickle days of her life. sonia sotomayor approached her and justice ginsburg shakes her head and says i don't want to get up and dance and justice sotomayor says marty would have wanted you to. marty ginsburg was a very big personality. he was the kind of person who was the life of the party. and then she puts her hands up to justice sotomayor's cheek and says thank you. that was another moment, it was very emotional. it was uncomfortable. some people were not sure what to make of it. moseley's they liked it. i think most people liked it. some thought wake a minute, but
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it was a great thing to find out about and i am glad i did. >> host: joan biskupic, you write about justice sotomayor, the justices varied in their personal assessment as is natural with any group, some found her warm, amiable, others counter abrupt and exasperated. these differences were not small in a larger scheme of the law they were. >> isn't that interesting? that paragraph took some time to figure out what to say because i don't want to make a big deal about a personality clash when it is really not a big deal when it comes to the law and also you should know these nine justices always close ranks. among them they have their differences and among them they're rolling their eyes constantly defy came to them and say get a load of so and so, as they would be taken aback because an outsider cannot criticize one of their own. they have a family dynamic going
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on, they are all appointed for life, they realize they have great incentive to get along even though they are different. some of these personality things, on a human level they are not small. and i want to convey that delicate balance and i wanted to convey the way in which she broke in. she has been breaking in all her life. i use that sauce incident to say if she had waited for another point, a later end of term party it wouldn't have been as the effective. he is not the kind of person who waited her turn and that is why she became the first hispanic ever appointed to the supreme court. using it metaphorically had to -- it was helpful to readers to
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see this culture clash. and you go, i hope people see in the spirit of the kind of woman she is adjust this she is becoming and also to pull back the curtain a little bit on what the supreme court is about. >> host: you seem to emphasize her puerto rican routes more than her hispanic roots. is that fair. and she identifies herself as puerto rican, she has used the term is that on herself, she is latina and just so your viewers know, those words latina, latino and hispanic used interchangeably by just about everyone, the u.s. census, researchers, academics, justice sotomayor but just as sotomayor identifies herself as puerto rican also identifies herself
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more broadly as latina. when she was appointed she became a symbol for all hispanics in america. one thing i should say that i haven't quite appreciated in the 1990s as other hispanic candidates were being mentioned were the differences both in the community of how puerto ricans are viewed, as mexican-americans are viewed, and within a larger umbrella, and she will refer to herself in many ways. >> host: from your newest book "breaking in: the rise of sonia sotomayor and the politics of justice" in nearly 1990s john roberts was a subtler tacticians and the aggressive sotomayor but neither lacked raw ambition as would be proven when the end of on the high court decade later. 2005 george w. bush would nominate robert >> justice in the 1990's, and
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crafting legal positions and writing briefs, but roberts was a smart political operator whose judgment was soft throughout the administration, for her part sotomayor learned to work two side of the nomination process. as a nominee and the conduit for information. >> she was so politically savvy. the chief justice of the united states, john roberts, a buttoned down individual, he did not put it on facebook. and always been much freer with her movements, feeling like she can assert her identity, a much more reserved man, they're both politically savvy and i love
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discovering that in the >> host: 90s when he was in the solicitor general's office he actually advised george h. w. bush administration, low and behold what name comes before him, for district court seat, if they receding here is a would probably say i wasn't very ambitious but no one gets to the supreme court without an addition. the one person maybe should have an asterisk by his name would be david souter who should succeeded. he was an accidental justice but still did not lack for ambition. here you have john roberts and seemed to be always making the right moves and quite effectively so sonia sotomayor who came from a different background but really picked up on the political channels, and what you have to do to remain visible in nomination politics, she learned a lot from the first
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nomination. i also have to say she did acknowledge in her own memoir that once she was on the federal judiciary, once she knew she would be in some ways giving her career more emphasis than her home life she did not lack ambition said she will acknowledge it. just that i think sometimes people don't want to be perceived as overly ambitious but this is washington. >> host: how valuable in your research was autobiography that came out a year or two back? >> guest: it is very valuable. i found this contract in early 2010 and i had been aware find the scenes that she was doing her memoir at the same time and mine was never intended to be a biography in the mode of what i didn't justice sandra day o'connor and justice scalia. i wanted to do a political history of how she ended up on the court at how this match the
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eyes of america. when i found out she was doing this memoir it hadn't been quite announced yet and found out in a way that i couldn't write about. here she is on the court, barely finished herself and getting an agent and finding this contract. i would never underestimate her. she is very smart and she knew she had a compelling story to tell as we saw in her excellent memoirs entitled my beloved world. i at one point thought it might come out before her ears. mine wasn't ready, i hadn't finished but i was so glad i had because i benefited so much from hers. when i talked to her in her chambers she said to me did you learn anything new? she was aware i was tracing her footsteps, reading her speeches, visiting the bronx, pr but i
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wanted so much from that book and i also learned her attitudes about things because if you were aware what she had said in his speeches leading up to her nomination and the time of her nomination, a much different attitude how she regarded her mother, her father, she revealed her father was an alcoholic, revealed what it was like living with her mother knew she characterized as very cold and detached, something i would never have realized from her earlier speeches so i was quite helped by her own autobiography, yes. >> host: legal editor of reuters, long term reporter for the washington post, are the justices approachable, available to reporters? wikipedia i had good luck getting in to seize them, to all nine chambers for as long as i have been covering the court but
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it takes a lot of work because they don't -- they don't like to talk to the public record, they are as i said generally reserved, cautious, nervous bunch and what i have done over time is to win their trust and to say i will be very straight with you with how i am using material. if you do not want to speak for the record i will work hard to make sure what i learn from you is not attributed to you, definitely, but also that i use it at careful way and i think over time i built up a record of trust because in 2003, 4 and 5 when working on the sandra day o'connor books, most of them did speak for the record and for scalia most of them spoke for
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the record and justice scalia gave me 12 interviews but justice sotomayor, they did not want to speak for the record because she was a newer colleagues and i think the whole ethnic racial overlaid does make things trickier and i wanted to capture it that in the book and i think that it was too new, their tenure with her to want to go on record but i was able to find out things so is always a work in progress. other reporters have gotten in to see justices and when they are selling books they speak a lot. that is the nature of selling books. >> host: where do you come up with your title for and and scalia, "american original: the life and constitution of supreme court justice antonin scalia"? wikipedia you oversthink, and
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editors over think it and everybody keeps trying and that brilliant title came from an editorial assistant -- of misleading his original list approach to the constitution can i thought that she figured -- as thought was really great, "american original: the life and constitution of supreme court justice antonin scalia" and as you know, the subtitle, "american original: the life and constitution of supreme court justice antonin scalia". i have always liked that title and take no credit for it. >> host: you write that he was a bad sicilian immigrant experience. is singular place in the family, alone among the adults and the deficits of his early years would be determinative in shaping the arc of the future
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justice's light and his views on the law. >> i think that and how i found out about his unique place, anybody covering the court would know about the fact that he was an only child, you're going to know that he was an only child and got lots of attention and his parents were academics. the father taught romance languages at brooklyn college. the mother was a public-school teacher in queens so he had gotten a lot of attention. i would not have known that he was the only offspring of his generation if this hadn't happened. i happened to run in to the justice and his wife in a social occasion and i tend to be curious about birth order and i tend to be curious about the fact, i raise an only child, but to the justice and his wife, maureen, children can have certain demands of the tension
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and she said none of the brothers and sisters of the parents on both sides had children and that is interesting that he was not only the star in his own family but in this huge italian american clan. his mother was one of seven as i remember, his mother was one of seven and his father was one of two but he was the only offspring of that generation. that is not the kind of thing you can pick up through research in the library of congress. >> what does your amateur psychologists tell you about him being the only offspring? wikipedia the spot. all is the shining on him. that doesn't take pop psychology visit takes observation, he does bring a lot of attention on himself by what he says.
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in fact, my book came out in 2009 and there have been so many incidents where people say do you believe scalia said that, so many stories, so many -- >> host: he took on a lot, he leaves his job was to see whether something was constitutional or not and not to care whether he looked reasonable or not. >> guest: he would say i do always look reasonable, don't i? he doesn't have a strong sell consciousness, and neither does justice sotomayor. others do. it is human nature to be self-conscious. my first subject sandra day o'connor was aware how she was seen and my second two, to plunge ahead and if you don't like it that is your problem. i like it. >> host: offers subject, sandra day o'connor, what is her
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legacy? >> guest: she was the first woman justice with an appointee of ronald reagan, his legacy lives on in her, she was on for 25 years. i cast her in some ways as a politician on the court. she was an arizona state senator, the first woman to be majority leader of state senate house and that contributed a lot to her political smarts. i would like to say she came to washington knowing how to count votes and her legacy was trying to figure out how to prevail. really meant a lot to justice o'connor. in cases, in tennis, just about everything she did she was really competitive and on the law her legacy has been abortion rights, she crafted the standard we now have for abortion rights and when states can pass
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legislation. she wrote the opinion that prevails until today, we are not sure how secure it is but the 2003 of affirmative-action opinion from university of michigan case that allows colleges and universities to use race as one of the criteria for assessing applicants, she was quite influential in a federalism area, she has a deep legacy now because she was more moderate as the conservative. some of that has been erased with the addition of samuel lido who is more to the right then justice o'connor. >> host: welcome to booktv and c-span2. our guest is joan biskupic, she has written three biographies of supreme court justices, she is a long time supreme court reporter, currently with reuters, usa today, the washington post. if you would like to dial in and talk about her books, justices, court cases, we will spend the next three hours talking about
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the supreme court. 202-585-388 zero, 58-3881 if you live in the west or the mountain time zone and you can also communicate by social media,,@booktv is the twitter handle, and you can send e-mail to both the regarding sandra day o'connor, once she found a middle she never left it, she developed an incremental approach kicking her cues from the country and pushing it ever so slightly. she would neither drive the culture of the nation more seriously upset. >> that was her. she is still out there. very much involved in trying to improve the integrity of local judicial elections, still very
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active with her civics program, trying to help young people understand the three branches of government and what goes on with the supreme court. i run into her every now and then and she will say it isn't my author, she's still doing okay, she's 84 now and i hope we're all like sandra day o'connor when we hit 84. >> the first sentence in the quote from uva, once she found a middle she never left it. did she know -- was she aware of her position in the court as the fifth of those? >> oh yes. if you are the fifth vote you know you are the fifth vote and it is so tight, rushing -- think of what it is like, she comes on the quarter 91, warren burger is chief justice, the conservatives are amassing more power, she is more in the camp of chief justice berger and her old pal from stanford william rehnquist to at the time is an associate
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justices and will become the chief justice, she is aligning herself with conservatives and resisting pressure from william brennan, the reigning liberal at the time, justice o'connor had a little bit of reaction to what is going on. the more justice brennan tried to push her to the liberal side, the more she would in her early years stay on a right wing. once william rehnquist became the chief, and left the court, once we had more conservatives to the right, she found the subject to be quite comfortable. what happens in 1986? william rehnquist becomes chief, scalia comes on far to the right of her, she is not happy with the way britain is pushing her to the left but she's not happy with the waste khalil want her to go more to the right and i think she found a very comfortable homes there and very much aligned with the late conservative lewis powell who is also much more of a centrist
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conservative. >> do lawyers tailored their cases to sandra day o'connor and do they tailor them now to anthony kennedy? >> completely. his is the vote to get. his is definitely the vote to get. once said to me -- that is way overstated but face it, he is the critical swing vote on things like affirmative action, on abortion, on same-sex marriage. he has been the author of the beating key opinions on the rights of gay men and lesbians and he will probably hold the key to whether the supreme court now takes fact same-sex marriage and has the court rules. and lawyers will tell you directly is no secret that they are trying to figure out what does anthony kennedy want. >> back to your book and sandra day o'connor, the first woman on the supreme court became the first influential justice.
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throughout the confirmation process, even when confronted by senators and push reporters she had been the picture of decorum, a lady in pastel dangling at her elbow, her appeal was nonthreatening and the nation was captivated. to your most recent book, a good laugh, justice that he did not mind in the confirmation process talking about her health given the public she was with her in some -- insulin shots. with other aspects of personal life particularly related to former fiancee peter white made her bristle. years later she would complain about the process, quote, i don't mean to the graphic but one day after i have been questions endlessly for weeks at a time are was so frustrated by the minutia of what i was being asked about, i said to a friend i think they already know the color of my underwear. she believed that the fact that she was a woman, a single woman, played a role in the query,
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there were private questions i was offended by, i was convinced they were not asking those of the male applicants. >> two styles here is what you are getting at. you have sandra day o'connor who worked very hard to be the picture of femininity. i remember her saying at one point she didn't like wearing pants suits because it compromised her femininity but think of the year a. she is born in 1930, she comes of age in the 50s, she is not a rabble rouser by any stretch of the imagination, but she is trying to figure out how to be most effective for her time. you wants to be visible, she does not want to be challenging. he wants to change things that she does not want to be covert the challenging for that change. she adapted certain conventions that were comfortable for her.
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she did go on a ranch so not like she was sitting around when she was out there with horses and cows, but once she was in the public eye she tended to adopt the conventions of the day, flash forward, justice sotomayor, things are much different, she is able to bump conventions in some ways and she is also -- a new yorker, she is already going to be a little bit more -- boulder with her personal style, she is not going to clamp down. one person said to me she doesn't happen to be puerto rican, she wanteds that to be out front so she did forward confirmation hearings, get rid of the dangling earrings and red nail polish and talk about how she got rid of those things to conform to what the administration wanted and that
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is part of how it works and you want to get confirmed and the administration wants to get you confirm, the place to sort of show your identity in every way is not going to be during confirmation hearings and those of my subjects -- said the justice scalia. all three of them knew how to be nominees, so did john roberts and let's say robert bork sort of did but not quite and he went into a little more combative and there were many reasons why he was defeated but this is all part of the public seat of washington. >> as the nomination process always been as contentious as we have grown up knowing it to be? >> it has been contentious at different points dating back to the late 1700s it was contentious and there were other times even in the lifetime of those of us who are all little
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bit older and don't act like you don't know those names, you remembers those names, your dealers knows those names. i am talking about the late 60s and 70s and harry blackman got his spot on the supreme court in 1970, when he referred to as old no. 3, he was the third nominee put out after that. so we had tricky moments, think of the 90s when justice ginsburg got through. bill clinton, and they both were confirmed -- it was definitely a 90 something those, and in 89 -- those were approved
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overwhelmingly by bipartisan supporters. answer to a lesser extent john roberts, those were more divided. >> host: joan biskupic, how did you come to cover the supreme court? when did you start? >> guest: it was back in '98 when i switched to congressional quarterly and they had an opening for a legal affairs reporter. isis interviewing for a labor reported job but it turned out the editor knew i was crazy about the law. i have not got my law degree, and i always had an interesting course, this wise editor said letter covers legal affairs so i started ages ago, this was in the late 80s by congressional quarterly covering the senate judiciary committee, legal affairs on the hill and also picking of the supreme court as an additional beat in the
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supreme court wasn't supposed to be at the core of my coverage. i was doing mainly things that were happening on the hill and it was an exciting time. those with years of immigration reform, the handgun control bill, two terrific nominations in clarence thomas and david souter, some contentious moments especially the clarence thomas won in 1991 so i kept breaking up as much as i could to cover the court in 1992 i was hired by the washington post to be the supreme court reporter so i shifted to the supreme court full time and really haven't lifted. i picked up other things along the way and in 1989 is one i started doing law school at night at georgetown. normal reporters can't do that now because of the 24/7 coverage we did that at the time i was writing for a weekly magazine and i could sort of pace my schedule and even when i
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switched to the washington post in 1992 i had about a year-and-a-half more to finish up my law degree and it somehow worked out says that was good and i stayed at the washington post real reason switch to usa today and that reuters i'm not the main person covering the supreme court. that is my partner lawrence early. had brought obligations now. >> host: supreme court nominees are described as the most qualified person in the country to be on the court. >> aren't they all. they are. but let's get real. there are many qualified people out there. that use that all three of my subjects were chosen there were people who were equally qualified if not more qualified. the years that scalia was chosen he was chosen over robert bork. unfortunately for robert bork the senate majority flip to
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republican or to democrat after he was chosen. mated too hard for him to get through but the years that sandra day o'connor was chosen -- i don't know if ronald reagan would have said she was the most qualified, certainly she was qualified for the job but remember she had never served on a federal court that he had promised to appoint a woman in sheen is that. senior she was chosen because she was a woman, and so what, that is great. that is what she would say, that is great. i was qualified. was i the most absolutely positively best qualified person in america? is to say that is an underwater criteria. that is the thing i still get a lot with -- not so much with scalia, they don't want him there. with my current subject -- i here and she is questions about her qualifications but look at her background, 17 years on lower federal court, princeton and yale.
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is she qualified, certainly she is qualified. the two people she was most in contention with at that time were elena kagan and judge diane woods from the seventh circuit, elena kagan got the nomination the next year, judge wood would have been publicly qualified for that job. there is not just one thing. >> host: why is clarence thomas so reticent to talk to the media? >> guest: he gives me good access. i am sorry he doesn't talk from the bench. during a lot -- are -- oral arguments in 2006. i think it hurts him and hurts his public profile because people are puzzled by it. school children who come to the courts are puzzled by it, they think he does not add anything to say. he gives several reasons, he says my colleagues are doing
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plenty of talking, i want to hear from the lawyers. he once told some school children said he had grown up somewhat self-conscious about the way he spoke, his poor roots in savannah and he was self-conscious about his dialect. he was a fabulous public speaker. he has a really great voice, a deep, booming voice so when you do hear him speak it is quite strong and commanding. off the top of my head, what john stuart did, when he hears this voice, he is like where is that coming from? he has a fabulous voice and he is a smart individual and he put out many questions that could shed light on the issue before the justices that he has for reasons that only he knows stopped asking questions. >> host: is well-known that scalia and bruce begins during our friends.
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are there other friendships on the court that are not as well-known that special like that? >> guest: that one is really special. they were really good house on the d.c. circuit together. that is the washington d.c.-based federal appeals court and they were both former professors said they would exchange their opinions and ask each other for advice like two academics would do, they're both incredibly smart end both love opera, one of them is obviously much more out there in terms of his personality, scalia won't stop talking and she speaks at such a slow pace that i cannot do any imitation of her. she happens to be very personally shy also. she has trouble meeting your eyes that she is quite commanding in what she does on the lot and i will never forget one thing she said to me when i
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was talking about that relationship and she said i just love nina but i would like to strangle him. he has not been so good that way, but he really enjoys her so they spend too years eve with their families, at a dinner party and they do lots of social things to get there. i don't think there is another pair on the court that the become rubble. in earlier years justice o'connor and lewis powell were very tight, lewis powell is the justice who retired in 1987 opening up the seat that robert bork was nominated to. the wonderful thing about that relationship for me as a journalist and author was he said of her correspondence in his archives that are at washington and lee in lexington, va. so when i was researching the book on her i was able to find all that correspondence and to see that only her personal
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observations about maneuvering on cases with lewis powell and how she felt when she was diagnosed with cancer, when she went to the loss of her parents when she was on the court, so those two had a very special relationship that i would say was almost as tight as the one between justices scalia and ginsberg. >> host: this is robert barnes writing about the retiring dean of the university of california at irvine. >> he is not retired, you don't mean retiring. >> host: not apologize. i made that. he came out with a new book and this is something he writes in his book. we should realize that this is an emperors' it truly has no clothes. for too long lived treated the court is if they are the high priests of the law or at least as if they are the smartest and
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best lawyers in society and mr. barnes writes his conclusion, the court has frequently failed throughout american history at its most important task, at its most important moment, this is not easy for me to conclude or to say. >> guest: bob heintz was my first editor, he used to edit supreme court, the and now he writes about it. we go way back. i read his book to help with things that he read my latest, he ran all three and was tremendously helpful land he was really helpful and justice sotomayor. he really understands this justice and he understands the court. would i ever had taft that view of the supreme court? no. but irwin who i had great praise for is an advocate and he comes at this from a distant echo of view. i am a journalist and author who comes at it from a different
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point of view. i am not as ready to throw up my hands. there are times i am sitting there and here ann opinion announced and i think -- really? but i'll move on. i have got to write about it and i have to get some understanding of why. other times i think this is really good that this happened, they didn't go in a direction we thought they might, but i would never stick something as -- i wouldn't do it. and i think he has watched the court's very carefully. he was also -- she was born in 1954, in may of 1954, so he has wonderful perspective. he went to harvard, he has been a law professor at duke and founded the university of
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california at irvine so he has 8 wives perspective but it is definitely a perspective that is pretty far on the left and pretty scrutinizing of the supreme court that has throughout its history, not just about the current robert scourge, he is also taking issue with things the warren court did at different times too, the warren court stood as a bulwark of liberalism. >> are there people in the audience, myself included, who see the supreme court as a calculus equations. is complete the not understandable how they operate, what they do, but at the same time use a it is very quarter wikipedia. >> it is very orderly and let me say this. if you're one of my editors i would say it is very confusing, very confusing, but the truth is
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it is not confusing. when i was a washington post my mantra was this was your supreme court, this is a supreme court that is fair -- expands to justice. let it as sound, i am sure it has let down america but it is one of three branches and there are checks on each branch but here is how it works. one of the students was a master -- you mean they don't stand in january? they don't. they begin on the first monday in october. that is the official start date but your viewers know they jumped the gun as they have in recent years with what noon cases they were adding to their calendar. so we are in what is known as october of 2014 and 15 turner. it starts on the first monday which is october 6th and will run until an end of june just like school.
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what they're doing during this time is deciding what cases to take. the justices have discretion of what appeals and petitions they here. they don't have to take every case it comes to them the lower courts do. they get bitterly hundreds, thousands of appeals, formerly known as petitions each year and they get to pick and choose and they normally pick cases where there might be conflicts by lower courts so they are straining the law and take issues of big national importance, same-sex marriage perhaps they will take, we will know that in a couple weeks so they are on a cycle where they decide what cases to take starting in october, they are also announce objecting these cases to oral arguments, so the first week in october your viewers and listeners are going to hear them take up cases having to do with criminal law issues, religious freedom
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issues, labor issues and then they will meet in private, when they meet in private they don't have any locklear secretaries, justin nine justices sitting around a table taking of votes and they do that on wednesdays and fridays at the supreme court and then after they have done that at the start drafting these opinions, the draft the easy ones first so it is about november you start to see some rulings and they will be mostly the easy rulings, and then the tougher ones come out and by the end of june we finally get the hardest cases, the toughest to resolve. >> host: who gets the draft? >> guest: it is the majority deal. there are lots of different things, october 6th they hear a case involving the fourth amendment which protects people
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from unreasonable searches and seizures. in this case, made police stopped a car that has a broken tail light and then used that incident to search the car and inevitably find cocaine when under north carolina law, the officer made a mistake. it is the sort of things that could happen to a lot of people. they look at whether it was reasonable that officers stopped the car and was able to search and found the cocaine and they will hear oral arguments and will be an exciting hour of arguments for those of us who like this and wednesday they will take a private votes and -- fate will -- of am sorry. october 8th they will take a private vote on that case. everything is in a rhythm.
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the monday cases they talk about on wednesday in private conference. tuesday and wednesday they talk about on friday. i think that is the way the cycle goes. i notice private when they meet. so they will meet and take a preliminary vote. chief justice john roberts will be at the head of this rectangular table and he will say look, the top didn't know that under north carolina law you only needed one working tail light. it was a reasonable mistake or he might say it is the letter of the law, we don't want officers enforcing what the actual law is. i have no idea what will go on in this conference because i have not heard the oral arguments yes so they take a preliminary vote. let's just say it breaks 5-4 and the chief is in the majority of the five and ruth beginsburg, the most senior liberal justice
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is with the minority, the four dissenters, chief justice roberts will then assign somebody to write for the majority. the most senior justice on the winning side a sign that opinion, the most senior justice on the losing side assigns the defending opinion. anybody can write a concurrence on either side but the general thinking of the court at least now is that you want the strongest of opinion with as many names on it to convey a clear ruling to lower court judges and to the public. let's again take the north carolina case, say the chief has assigned clarence thomas to is that at cruise begins reassigned elena kagan to the dissent. the two of them start writing and circulating that drafts and circulate to everyone, to all 9. they now all work on computers but the supreme court is still old fashioned of the messengers
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actually take the paper drafts and run them from chamber to chamber. that is where i had tremendous access when i did the first two books, through the papers of louis pal, william brennan, thurgood marshall and harry blackman so it was great to see these and the gestures the injustice saw them says they would ask for a changes and this goes on it is a straightforward case they can usually resolved it in a couple weeks. it is a difficult case and they have wars of rhetoric, it could take literally months and we just know what happens in this end is someone like me is always trying to recreate what went on behind the scenes and i love when i find information and by the even more when i get the documents because then you see what happens. is like anything. you try to recreate the scene and did you only have three justices telling you what happened you are lucky enough the three are telling you but
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you also know that these visions of what actually went on, so then i say some time let's say in the north carolina case, we hear -- we could hear as early as november or as late as march or june that tends to be tricky, i don't think it will be tricky for them but the ruling will be announced from the bench, the justice who has the majority opinion will announce a brief synopsis from the bench. the dissenting justice traditionally does not read his or her descent except if there is real anchor. we live for those moments because it is more dramatic, gives us something to write about, gives the public a little bit more tension, helps with the understanding of the duel initiatives in the case so in june we get a few defenses from the bench, but the defense will speak on paper. >> host: joan biskupic, how important is the oral argument? how much time did they spend prior to the oral argument?
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>> they're important many respects. i wouldn't say they are determinative and i don't think the justices would be because the justices, these are not reaching people, they're marking of texts and yellow highlighters, people like us doing that kind of thing, understanding documents. rulings are based on prior rulings, based on precedent. they love president. the word is decisive. they don't want to disrupt a pattern of where the law has been before so the main thing that influences how they rule -- let's use the north carolina criminal law case. the main thing they look at our past rulings on the fourth amendment jurisprudence on unreasonable searches and seizures so that is going to guide where they're going to go. what else will guide them are the written briefs for both sides and that is where the lawyers better be at their best because they want to cast
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something in writing so the justice and go to the riding and perhaps pick up language for be convinced of something he or she hadn't been convinced of before and any of the great oral argument moments, this is the hourlong hearing where the nine justices are arrayed along this mahogany bench that is elevated. they're up there and you can see their heads and the lawyers standing at this lectern in front of them in the well and we are off to the side watching and eagerly trying to see what they will see, to figure out what they think is important, what do they think might be about it. several dynamics emerge during oral arguments, the most obvious one is justices get information, they get answers to their own troubling questions. speaking from the justice's point of view they get to troubleshoot both sides.
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the only thing that goes on from the justice's point of view is a signal to each other perhaps their own persuasive arguments. they go into this case thinking if they are invested in fourth amendment law they want the case perhaps to come out a certain way, they want some instincts to signal to their colleagues and they might ask questions in a certain way saying really? have we ever rules that an office circumstance someone based on a misunderstanding of law, the officer had his act together to know what the law says or somebody and say give me a break. i would have thought you had to have working taillights in north carolina city might have those questions or stuff like that. they might signal of this. i n using a b grade case but let's take same-sex marriage, you are going to get a arguments
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because they had not talked to each other about this case before this moment. they don't know where the other stands on this issue so they are going to use oral arguments to telegraph things to each other in cases of great importance. you got a couple different agendas from the justice's point of view. from the advocate's point of view this is his or her moment to find out what do they need to know to pull for me and to head on confront the other side. they do is in writing that they have not been matched up in a moment and tomorrow -- sorry to say tomorrow but let's just say the date, october 6th, that justice fisher, a stanford law professor will stand up and represent a defendant who was charged with cocaine trafficking and he will make the strongest
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argument pecan on behalf of defendants and why the conviction should stand that he will have two a three points he wants to make sure when they go back to the private conference they have in their head, and to hear what might be troubling individual justices so he can eat it head on and also want to hear what the other council is going to say for the state of north carolina so he can say you might be sympathetic to this point of view but turn the lens of little bit and think of it this way. a lot is going to happen in that hour and again, because the first monday in october case is not one that many of your viewers would know about one not get a lot of attention but precip we will have for other cases they will be watching for. the obama sponsored health care law probably on same-sex marriage, and what i just described is going to happen in a more intense fashion andover along period because if they
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take up same-sex marriage, at two hours rather than to additional one our of 4 arguments. >> the officials note in this theoretical case we are working, the official vote is done the wednesday after the monday hearing, in the room, nine justices, they raise their hand? >> guest: they don't raise their hand. it is preliminary. nobody is set in stone. you can change your mind. we have lots of reports during the first episode of the obama sponsored health care law shifting the vote, you are allowed to change your vote is you go along. you may not want to change your vote as you go along because it sets everybody in a different direction but it happens and actually the justices are happy when they can convince a colleague to change his or her vote. it is like anything, it is
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rhetoric, they all coming with the idea where things should go by then they see whether it right, that is a phrase i hear often. does it right? and maybe you'd get convinced of something. one of my favorite chapter is in this book is when justice sotomayor actually convinced her colleagues in an affirmative-action case through the writing, through what she was bearing them, and positions that she said -- she dared them in some positions they had taken on affirmative action and we saw some shifting votes on that or a lease i found out about them. that is what is going to happen, they take this preliminary vote wednesday and friday and then they continue the dialogue. i love the idea of this conversation in writing. they have this conversation, it won't sound as natural as it would be but it is natural to
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them and they feel really comfortable with it. much more comfortable than in person. as william brennan was known for visiting officers, just as prior likes to call people on the phone and talk but generally speaking this is the group that goes in the face of a colleague to say you are voting that way, come on. >> you talked-about precedent but how important are the descents to the rule of law? >> the dissenters are very important because maybe they could convince people down the road and the justices themselves dream of the day a dissent become the majority opinion and that is certainly happened, dissents do become majority opinions in some cases especially if it is 5-4 a you change the makeup of the supreme court, a descent can become quite influential. a diss and can have a little more leeway to speak to the
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public also. you tend to get a lot more speech in dissent because first of all ages this might be speaking only for himself sometimes and can really become unhinged or say you will renew the day when this plays out in america but, so they speak to colleagues who might change their minds down the road and speak to the public. ..lic. here's another thing, they can speak to lower courts and say you might be reading this in the majority opinion but take caution not to do this and this. or famously most recently just as scully and his dissenting opinions is but justice scalia has said these rulings are opening the door to same-sex marriage, and in the windsor case in june 2013, when the justices really did something narrow and striking down a provision didn't even comment on marriage rights.
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justice scalia said the game is over, this is all about marriage. lower court judges friendly said yeah, i think we believe and dissent and we're going to rule that windsor takes it much further towards same-sex marriage nationwide. >> host: joan biskupic is our guest. now is your turn. if you can't get there on the phone lines you can also get to on social media. at booktv is our twitter handle. yoyou can send an e-mail to and final you can make a comment on our facebook page, and callers, thank you for your patience but we'll be right with you. don't hang up. i want to start with his e-mail. he talked a lot about five for decisions and this is from alan steinberg. he e-mails in, i'm very nervous about five for decisions. has any responsible party ever suggested that a decision in most cases should require a super majority, say 6-3? >> guest: justices don't like fight for decisions either but
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if you're in the majority you'll take what you can get. they don't like to appear so divided. or polarized, which they are. they brag about their 9-0 decision. that like to talk about the reports always talk about the 5-4, but we are unanimous many times over. they are unanimous in the ones that are as controversial. the 5-4 cases are the ones that can affect our lives. for example, in the windsor decisions i was referring to earlier, which involved a part of it of him by the name of edith went who was challenging the defense of marriage act trying to seek federal benefits in a -- estate taxes even though she was married to another woman, not to him into at the time federal law said these benefits can only extend to marriages that have a husband and a wife. now, your e-mailer suggested something like that, a big decision like that maybe should've been 6-3.
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they won't go there. they feel like, and when your only comment if you like look, a majority is majority. and only dealing with nine people. it's hard enough to get a majority in some of these cases. even to get 6-3 would be virtually impossible for a lot of these but the most recent abortion rights cases have all come down five or. a from an action to become self i-4. religion rights to the combat 5-4. it's the nature of the institution. super majority work and the legislative branch but they don't work on the judicial branch. >> host: legal editor and reporter, author, joan biskupic is our guest. sandra day o'connor, her book, "sandra day o'conner: how the first woman on the supreme court became its most influential justice" came out in 2005. "american original: the life and constitution of supreme court justice antonin scalia," 2009. her most recent book is on sonia sotomayor, "breaking in: the
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rise of sonia sotomayor and the politics of justice." nancy in lagrange georgia. you've been very patient to you on with joan biskupic. >> caller: good afternoon. i wanted to ask this this cubic about, i am big on justice o'connor and i know that she was -- [inaudible] my question is about a fourth amendment case in public health. it was chief justice rehnquist's dissent in philadelphia versus new jersey that got me interested in the court but i know that he declared for justice jackson an underwent ife knows of any cases that came out of nuremberg that impacted the court and if those decisions actually impacted bank was dissent in philadelphia versus new jersey? >> guest: thanks to the color. and i'm off my right of the top of a hit with all the details of the case so i'm going to jump to what you're asking about with
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justice jackson and william rehnquist and the great friendship between justice o'connor, the caller is interest income and william rehnquist. and i'm glad she mentioned that because peter, you're asking about other friends on the court. as nancy just mention in her call, justice o'connor and justice rehnquist knew each other, they actually even dated when you're both at stanford law school. he went out and visited the family ranch in arizona and she tells if i was a story about that in her own memoir. so they were good pals. they were good pals personally. she separated herself from him on the law toward the end of her tenure. but william rehnquist is interesting in terms of the jackson connection, and i will just tell the caller something about that. he found that clerkship in a way that other western law students
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probably would've never gotten clerkships. justice jackson came out to palo alto in 1952 i believe to help dedicate what was then a new stanford law school building, and while he was there he met rehnquist and he was able to say i like to cook for you, wouldn't it is, you know, clerk, and sort persuade justice jackson to take them on in a way as i said from the west to didn't regulate traveled to washington interviews would have been able to do. so your caller knows a lot of the history of these relationships and i'm so i can't comment more on how his expenses on the nuremberg panel and what trickle-down might have affected things. but there wasn't interconnectedness of there. >> host: noted in your book, "sandra day o'connor," ken starr was involved in her nomination.
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>> guest: i loved learning that story. it is the most fun part about doing these books is what you find out that you hadn't known before. so everybody who's listening knows of ken starr as a former solicitor general. they know him mostly for the monica lewinsky report during president bill clinton's impeachment. >> host: and a president of baylor, right? >> guest: yes. is that what comes to peoples my first? no. it is also solicitor general of the united states and people forget that because all the starr report and the monica whiskey. he is president of baylor, but back in 1981, he was an assistant in the justice department who was tasked going to visit arizona and to visit this woman had never heard of, sandra day o'connor come to see could she possibly be material for the u.s. supreme court? he goes out there with another guy, jonathan rose, who still an
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active lawyer in town, and they go to her house in scottsdale -- >> host: paradise valley. >> guest: paradise valley. i could remember which suburb. how could i forget paradise valley? and she has, this is something interesting, jewish is recovering from major surgery. she's recovering from major surgery during this incident. she's someone who these guys in washington have never heard of, and she's got to impress them with our constitutional law ability, that she can withstand what goes on during the nomination process. she's got to hold it all together in this post surgery modicum and, of course, she's the kind of person she is she serves them this exquisite salmon salad and they can still member. so they are there and ken starr and john rose said later that they really understood what kind of person she was. that she was quite effective in making her own case, even though
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as i said, should not even been in any federal court. she was actually at the time she was on an arizona court but it wasn't arizona supreme court. she was ready for them. she was really ready for them. both she and sonia sotomayor for very political savvy and they knew what it would take and they both did their homework done for john in new york, good afternoon. >> caller: good afternoon. i have actually become it that i would like to just to please comment on it. and that is that, in my perspective president have limited their appointments recently, recent president. the candidates have served on courts and primarily are graduates of a few prestigious law schools. but in the past it was common for president to select candidates from the political arena. you mentioned robert jackson. they brought a practical fear for the issues that they had to decide on the court.
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in my opinion that's absent today. and the other question, just a quick question is where did the four judge ruled come from academic who is going to what cases the court ordered her? >> guest: those are good questions, i like those. great questions. one is nice and brought and one is down to the specifics of how this place works. first of all i'm glad i call the race to because it's so true. when you think of the warren court, earl ward, former governor of california, people who were sectors, people have been in the justice department. your people have been out there, people who have run for public office. that is all change. in fact, sandra day o'connor during their yearly 25 years on the bench, she was the only one among those nine would ever even stood for public election. again, back in arizona. and now with exception of elena kagan, every single one of the justices came from a lower federal appeals court bench.
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your caller is absent be right, that the experience level has been narrowed. and also all of them have either graduated from them i'm going to put asterisk on this, all of them either attended yale or harbored for law school. justice ginsburg attended harvard and didn't finish at harvard. she finished up at columbia as of course no bad school itself. they're all ivy league. she's finished at columbia because she moved to new york city with her husband was a year ahead of her or his job at the time in the '50s. so you have all these justices who come from a fairly narrow band of expense. of course, clarence thomas and sonia sotomayor and ruth bader ginsburg have their different backgrounds through being only the second woman on the court, justice ginsburg, the first lady and and, of course, the second african-american, clarence thomas. so they bring a different perspective to those things but
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they still come from sort of a narrow range of experience. and the caller has hit upon something that presidents themselves have thought about bucking. bill clinton spent a lot of time trying to persuade mario cuomo who at the time had just recently been new york governor, to be a nominee. he tried to persuade george mitchell had been senate minority leader to be on the court. he tried to persuade richard riley of the time i believe was education secretary. and pieces we considered bruce babbitt who as interior secretary. bill clinton thought about going that route. and i think president obama might have a little way thought about that, but the safer nominees are nominees who have a track record in writing opinions. that's what presidents have gravitated towards. and i think many people think it's a loss to the country.
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regionalism, we have five justices know who are from the boroughs of the bronx or from new jersey. so it's definitely an east coast dominated court. summerlike sandra day o'connor really understood water rights and great west is gone. two of our justices grew up in the west but they hardly are westerners into traditional vein. stephen breyer grew up in san francisco, and then went to harvard and taught at harvard. he's got more east coast sensibly i think the west coast in some ways. and nancy kennedy tasha anthony kennedy grew up in sacramento, but he went and he also went to harvard and then to the london school of economics. >> host: the second question that john had. >> guest: this is good. this is important for people to know. thank you for memory that he
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asked the. he's talking about how many justice it takes to grant tertiary or to say we will take that case. right now asked the justice decide whether to take up the same-sex marriage is an issue, it takes of course five justices to decide it but only for to say we want to hear it. and that's been the way as long as i've been covering the court for a really long time, so i don't know when it started. i think it should one not known to the public mainly because people don't get interest in what happens but don't takes for justices to grant. and sometimes one of those four justices who might think we should we take up this case because we got a lower court ruling doesn't seem so wise, might frankly vote against it not one in the supreme court then as a majority to come in and national law, a role that maybe could have more harm, at least in the justice point of
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view, do you know what i mean? defensive vote on that, not just votes for granted. >> host: javier, miami. >> caller: yes. this is an observation and the question. referring to justice o'connor, and you describe are as chanting quote-unquote abortion-rights. ..
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>> guest: but her legacy certainly does involve abortion rights. and i presume what the caller was saying is, you know, how fair is that? how fair is that in terms of a woman's right to end a pregnancy versus people on the other side who say life begins at conception, there is no right to abortion in the constitution, where does the supreme court get off doing this? and that is an enduring dilemma. the supreme court in 1973 issued its roe v. wade decision, and it has remained so controversial til today. so i think that it's one that people struggle with, it's one that judges continue to struggle with. i wouldn't be surprised if we didn't get another case back there soon. we had a very controversial ruling out of texas recently that has caused several clinics there to start to shut their doors. so abortion remains an
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incredibly difficult topic. i remember when i first started writing about abortion rights, i likened it to controversy over the vietnam war. well, nobody's talking about the vietnam war anymore, and they're still talking about abortion rights. >> host: in the chapter from your book on sandra day o'connor -- >> guest: sure. >> host: shifting ground on abortion is the name of the chapter. you write, at bottom her opinion reflected her brand of judging in the face of strong anti-roe rhetoric from the chief justice and a near majority, she had retreated from a position that could have reversed the 1973 landmark. this would happen in other areas of the law too. she would step to the brink and then back away. her opinion in webster v. reproductive health services was a pivot that would set her in another direction, but that would be clear only when she took her next step. >> guest: that was right. [laughter] that's right. that took me a long time to craft also, but that's right.
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she, just to also tell your caller, that she was actually much more in the camp against abortion rights in her early tenure there. she always had very mixed feelings on it, certainly, and it's a tough issue. it's a very tough issue. she would acknowledge, and there's just people at the extremes who say i don't see why it's so tough, but it's tough, and she found it tough. and what happened after the 1989 webster ruling which caused huge uproar nationwide, and there were big marches here in washington, d.c. against that ruling, justice o'connor pulled back. she pulled back, and she realized how important the right was. and she helped engineer the decision that the nation got in 1992 in the casey ruling that upheld abortion rights and set the standard that we now have that says that state regulations may not put an undue burden on a woman seeking to end a pregnancy. and so she -- i don't know if
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i'd say she changed her mind, but she altered her thinking enough to become a stronger supporter of the basic right than she had been originally. >> host: velma, carlsbad, california, you're on with joan biskupic. >> caller: good afternoon. i'm very interested in your opinion on the passage of citizens united. i'm really quite disturbed by this, and i would like to know if you think this will be reversed. >> host: velma, my guess is that joan biskupic will not share necessarily her opinion on the case. what, what's your opinion on the case? why does it disturb you? >> caller: it disturbs me because i feel it's a threat to our democracy. and being, and also because, you know, how it will affect the power of the individual vote of an american.
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>> host: thank you, ma'am. joan biskupic. citizenned united. >> guest: yes. the caller's referring to a case that's not as controversial as roe v. wade, but a good runner-up definitely. issued in january of 2010 by a 5-4 vote -- referring to your other caller there -- the justices said that the congress was wrong to set limits on certain spending by corporations and labor unions. and it allowed much more corporate money into campaigns. it's been seen as giving a boost to super pacs, it's been seen to just letting much more money in to the democratic process and favoring corporations over individuals' speech rights. and it's 5-4. there is a chance it could be reversed down the road, but that would take a change in the makeup of the supreme court. right now those five
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conservatives who ruled that way -- chief justice john roberts, anthony kennedy, antonin scalia, clarence thomas and samuel alito -- are all there, all fairly healthy, none of them giving signals about retirement. and as i'm sure your caller knows because she was so concerned about this ruling, they have followed it up with other decisions and actions that, essentially, reinforce it. i should note that the one time last term that we had a major disruption in the courtroom where going back to the earlier, prior discussion, there are no major disruptions at the supreme court during oral arguments, somebody stood up and actually complained about citizens united, had an outburst, and the chief justice had him taken away. but at the same time, somebody secretly recorded him and put the recording on youtube. as a result of that incident -- which, again, was sparked by citizens united. so you can feel that there's a lot of passion about that case. the security screening to get
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into the courtroom is much tougher now. just phyllis is in ridge crest, california. phyllis, you're on booktv. >> caller: yes, good day. how are you? >> host: good. >> caller: yes. i have just one question i've been thinking of several years now, that how come such an important body of politic such as the justices are able to sit for their whole lifetime if they choose to do so? how come they aren't given a term, maybe 20 years, maybe three terms? because being that they're making these moral value judgments and the policies and the thoughts and ideas of the american citizenry isn't always reflective of what they themselves are making when they make -- can excuse me -- when they make these judgments, judgment calls. so, you know, maybe sometime in the future we should consider at least having them appointed only as long as the president that appoints them is in office as well as maybe giving them a
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20-year term just like anybody else who gets a job. you don't sit there and work all the days of your life, you know, on that job. you burn out. everybody burns out. so we have to think, i think, we should consider taking these justices, giving them a term of serving so that we can get a better reflection of the ideas and the moral values that the american people really -- >> host: thank you, ma'am. >> caller: thank you. >> guest: it's a discussion that comes up, but it's in the constitution. they're appointed for life. for better or for worse. the framers of the constitution felt that would be the best way to insulate them from politics, so that they weren't effectively running for office, or they didn't have to please the person who had appointed them. so there were benefits to the idea of this impartial judiciary, of a judiciary that would have more integrity, be blind to certain political constraints that the other
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branches would face. so that's, that's the background of why our supreme court justices and, frankly, every member of the federal bench from district court judges up to the appeals court level to the supreme court level on the federal bench are appointed for life. now, you get complaints about that, but they tend to be -- they didn't tend not to be like the caller's complaint. the caller's raising concerns about burnout, bringing your own moral judgment to it that, you know, might be outdated after time. usually it comes down to kind of questions of politics of one justice over another. sometimes it comes down to why is that liberal still hanging in there. justice john paul stevens retired at 90 and, boy, was he a active, free-thinking 90-year-old. justice douglas, basically, had to be willed out. so, you know, it depends on how
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long they hold on. chief justice rehnquist really, really wanted to hold on, and what does he do? he died in office, september 3, 2005, from thyroid cancer. he thought he could last another term, and he couldn't. so they tend to think that appointed for life means appointed for life and then death. and they hang in there. now, justice o'connor left just shy of 25 years, but she left in part to go home to take care of her husband who had alzheimer's at the time. he ended up dying a few years later, and her colleagues -- including justice ruth bader beginnings burg -- think that she regretted leaving when she did. >> host: why? >> guest: just because she -- well, twofold. it's both personal and professional. she's left to take care of her husband who was ailing, but she couldn't adequately take care of
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him, so he ended up in an assisted living home because his disease had progressed far enough. and she ended up herself being quite active and able to keep being out there professionally, so maybe she didn't need to leave when she did. it's, it's a personal choice, and once you leave, your world just isn't the same. >> host: well, just to follow up on that -- >> guest: yeah. >> host: louise houseman asks that question, whether or not justice o'connor regretted leaving the court which you've talked about. but number two, to bring up what the last caller brought up, there's a belief that the supreme court's decisions in the last 20 years have become increasingly politicized. what is your opinion? >> guest: okay, i'll take both of them. first of all, justice o'connor herself has never said to me i really regret leaving. i don't think she would ever say that to anyone. she's the kind of person who makes a decision, sticks with it and keeps rowing in the same direction. but i do know that it has been
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subject of speculation, and ruth bader ginsburg said directly to me, you know, i wonder if sandra regrets it. so that's to answer that question. and i think that if i had to bet money, i'd say that somewhere deep in her heart, justice o'connor probably does regret it in some way, because it's been nearly a full decade since she's been off. okay, now the political polarization. i think that this court is polarized, polarized in politics and ideology, but it's not all that it is, and they surprise us sometimes. with the chief justice's vote, upheld obamacare. they've taken more incremental steps on hot button issues like affirmative action when i didn't think they would. so it's not all of a complete piece, but if you look just in terms of who's on this court now compared to where the kinds of differences we might have had in
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earlier decades, all five of the most, the strongest conservatives were put on by republican presidents. we didn't have -- and the four more liberal justices were put on by democratic presidents. we didn't have that before, you know, there were democratic appointees like byron white appointed by jfk who tended to vote more conservative, and we had republican appointees like john paul stevens who voted more liberal. so that might have given more confidence to people that politic wasn't playing a role, but now we have this unique political division of 5-4 which, i think, helps feed the public perception about politics at the court. >> host: is it unusual to have two former living, relatively healthy justices -- john paul stevens and sandra day o'connor? >> guest: no. no. in the olden days, in the earlier decades like, for example, warren burger stepped
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down to head the constitution committee, so he, let's see, he stepped down in '86 and didn't die until mid '90s, so he was around. harry blackman stepped down in '05 -- am i remembering that right? no, no, no. he stepped down in -- because breyer succeeded him. so he steps down in '94 and then dies about a decade later. and byron white stepped down in '91, he was succeeded by ruth bader ginsburg -- you're testing my memory for all these dates, yes, i can tell. anyway, it's not unusual, peter. >> host: currently on the court there are two president obama nominees, there are two clinton nominees, one reagan nominee, three george w. bush justices and one george h.w. bush justice. >> guest: right. >> host: stanley in maryland, please go ahead with your question or comment for joan biskupic. >> caller: i am struck that there are two myths that are existing regarding the supreme
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court; one that it is rational and, two, that it is based on the constitution. i had a professor in law school many, many years ago who was also a circuit court judge who said that every judge should be psychoanalyzed before he's on the court. and i'm struck by the fact that all of the people considered the conservative justices are catholic men, all of the usually thought of as liberal justices are jewish or women, and i'm just wondering whether that gives us any confidence of the court as a rational body at all. >> host: stanley, are you a lawyer? >> caller: yes. >> host: and what kind of law do you practice? >> caller: mediation. i worked as a mediator for many years. i'm retired now. >> host: thank you, sir. joan biskupic. >> guest: thanks for the question. and i'm glad to talk about the demographics in terms of religion and gender. you know, is the court rational? again, that's in the eye of the beholder, but i want to talk
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about something that the caller raised that's serious in terms of how the public should perceive the religious differences. the caller's absolutely right that the five most conservative justices happen to be roman catholic. the five men i just mentioned are roman catholic. now, sonia sotomayor is also roman catholic, she was raised roman catholic, and she doesn't vote with them on most of these tough social issues. the three others in the liberal wing happen to be jewish, of different -- everybody's sort of a different degree of how much they adhere to the their religious thinking, how much they go to church -- [laughter] how much they abide. i'm trying to remember the last time -- you know, a couple times i'll see justices come in on ash wednesday with ashes, but not all the catholics would on ash wednesday. so it varies in terms of how their catholic beliefs feed into how they vote. and what they would say to a person is they don't. let me tell you something else
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about the catholicism at the court. william brennan was a catholic, and he was one of the strongest supporters of abortion rights. so i can't, i can't say that this breaks down on religious grounds for their reasoning, but it does break down just as a matter of identification, that the five catholics tend to vote more conservatively, and the three jewish justices along with sonia sotomayor tend to vote more liberally. and i do have to say that i think it tells us about the place of religion in america that when barack obama appointed elena kagan to the court in 2010 to succeed our last partisan on the court, her religion wasn't an issue. she happens to be jewish. it meant that we would now have a court of six catholics and three jews, no protestants. protestants, of course, have run the world forever.
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[laughter] so it was kind of interesting that the wasp idea had suddenly disappeared from the supreme court. but people didn't object. and there was a time actually in the early '90s when i had some lawyers say to me now that ruth bader ginsburg has been appointed, it will be harder for stephen breyer to be appointed, and it wasn't. so it is, it is interesting to see, and it does shatter in some ways some of the stereotypes about how the public might view religion, but it's still there. the religion cases are almost as tough at the court as the abortion cases. >> host: what is the red math? >> guest: oh. okay, the red mass which is celebrated like, as we're speaking, right? on the sunday before the first monday in october, it's held at st. matthew's cathedral church -- i think that's the official name of it -- the
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apostle here in downtown washington. and it's, essentially, the kickoff for, of the -- it's a riggsal mass held with -- traditional mass held with, i think it was originally red garments that priests and bishops wear for this. that's how it got the name, "red mass." and it's attended by not just catholics in washington, d.c. who are involved in the law. stephen breyer, as i said who's jewish, often will attend. and it's quite ceremonial and it's mainly just a pray for good judgment. on the old days i would go on occasion just to see the justices there. >> host: and we're showing you this year's red mass -- >> guest: oh, good. >> host: you can see elena kagan -- >> guest: can i turn around and look? >> host: that's fine. >> guest: okay, good. >> host: john roberts and the whole gang. >> guest: there's elena kagan. >> host: so it's not official, it's just a tradition that developed. >> guest: yes. to say it's -- i'm not sure, i don't want to try to characterize what the catholic church is saying, but i believe
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it's saying, you know, here's to encourage good judgment and not necessarily religious judgment, but just good judgment for all who are involved in the law. it's not just for judges, lawyers will attend also. >> host: we have an hour and a half left with our guest, joan biskupic. she's written biographies on antonin scalia, sandra day o'connor and most recently on justice sonia sotomayor. we're talking about those as well as the supreme court. hour and a half left. but, first, we went to her house to see her writing. >> guest: my process is basically the same. i put a lot of energy into the proposal itself, because i want to make sure that i want to live with this person for many years, that i want to take time away from my family, you know, work late at night, work on weekends because that's when i do the bulk of the work. so i write a pretty in-depth
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proposal, and then once i get the okay from a publisher, then i basically do a lot of research. i research for months and months, and then i start writing, research, writing, research, writing. and i do mix it up. and i've found that even until the very end with justice sotomayor, i was still looking up things, still doing extra reading as i was still writing. and i find also it's quite motivating to -- for me, at least -- to mix the two processes. this is the hardest part, the time crunch. and this one was much harder than the first two. for the justice o'connor book, i took off nine months from my day job. i split up the time, and i -- and then for the justice scalia book, i was off for six months. for this one i had a summer at the woodrow wilson center. and i just want to say that the woodrow wilson center here in town is fabulous. it helps people like me, other journalists write books. so i took off some time early on. but then in february 2012 when i switched to reuters and had a more demanding job, i thought i
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am never going to finish this book because i would come home late at night, i would have fairly long days, and i would come home late at night, i'd fix dinner, and my husband would go read or watch tv, and i would come in here and look at this computer or -- first, i was working at the upstairs one, and that one broke, so i'd come in here, work on on the this compu, and i'd think i don't know how i'm going to get this done because, of course, you're exhausted. i happen to get up very early for work. and then i'd work on weekends. i would do all sorts of things for motivation. mainly, you know, i'm a real deadline person, so i tend to get things done. but it's very hard to get things done when you're exhausted, of course. so i would do research, i'd work in here, i'd work in the living room, i'd work upstairs, i'd go to the library of congress. i just kept going. and i played all sorts of tricks on myself. i would break down my increments and think -- it's like i used to say to my daughter when she lived at home, if anything happens to me, please, destroy
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all those post-its that say in this 15 minute increment you do this. but i found if you work in those short chunks, you're getting things done. you're like, okay, cross that off. i'm a great list maker, and i love to cross things off my list. so that's how it gets done. [laughter] ♪ ♪ ♪ ♪
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♪ ♪ >> host: joan biskupic, south side of chicago, huh? >> guest: yes. >> host: why? [laughter] why are you from that area? >> guest: i couldn't control where they birthed me, yeah. my parents both came from first generation homes. my mother, irish, my father croatian, and they grew up on the south i'd of chicago -- side of chicago in the beverly area for people who know the south side, and those of us who are from the south side tend to identify ourselves that way. when i was at the washington post, there were three or four of us, and we used to have to do these mini bios, and those of us
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from the south side would say we are from the south side of chicago. so i was born and raised there and moved out to the suburbs when i was at the end of high school. but both parents from there, and i love that my own daughter when she got old enough went back to the university of chicago, which is on the south side -- i always say the brainy south side, not exactly where i grew up -- when she went to college. >> host: were your parents college graduates? >> guest: they were, they were. they were slightly unusual in the neighborhood. my father was, at least, because he had a law degree. he was a lawyer. my mother, they met at loyola, actually. they both went to loyola at different points; my father for law school and my mother for undergrad. and she taught. she was a teacher until i was born which was pretty quickly after they were married. so she taught and then she had all these children. so they were both, they were both educated, and they both were very much interested in words. my father went on to do a lot of
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municipal law, represented the city of chicago fire department at different points and then, you know, various municipalities in the region and was, essentially, in a maul office with a partner -- small office with a partner as he did that. he wasn't with a big firm. >> host: do you remember the first time that you were interested in law? >> guest: i was always interested in it. my early journalism jobs were covering government and politics, but i found that i gravitated toward the courts. i was always interested in court rulings, interested in cases. and then when i got to washington, it was, it became very convenient, actually, to go to law school on side. and i kept saying to myself because while i was, you know, i had a full-time job at congressional quarterly and "the washington post". and i had a baby in the middle of it. and i always thought, you know, this is getting kind of hard, and i kept giving myself
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permission not to finish law school. okay, it's okay, you've got a big job. you don't need to finish. but i did. you know, i finished, and i enjoyed it. and, you know, i kind of liked the pace of school, and i like law, and i found that with politics and government it's very mutually reinforcing. and i actually know several journalists who either went to law school or aspired to be lawyers at one point. i think journalism and law tend to be quite compatible. >> host: why? >> guest: both have to do with words. you know, writing is a big part of law. you know, when you take -- you write, you have to write lots of essays when you're in law school, and writing's, obviously, a big part of journalism. i think it attracts people with the same sort of skill set. and i was reminded of something you said about how you think of the supreme court as calculus and something that you kind of are afraid of. i'm, i find that it's very easy for me to swim in the world of law, humanities, journalism,
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those kinds of things. it's more science and patent law which has become very important at the supreme court that i find, i resist more. i would resist more science and calculus than i would resist the law. and i have a good friend who's very smart on patent law, and i said, oh, but it involves so much science, and he said the trick is not to be afraid of it. that's what i would say to you about the supreme court; don't be afraid of it. don't think of it as calculus. think of it as something you can learn about. and i've liked that about the law, and now i'm trying to get smarter on science and patents. >> host: 202-558-3881 if you are out west. if you can't get through on phone lines, try social media, @booktv is our twitter handle, if you want to make a comment there and, finally, send an e-mail,
10:48 am and from our facebook page, dan says: what, if anything, can you discern about the three justices you've written from the working relationships they've had with their law clerks? >> guest: oh. oh, gosh. talk about bonds that are very tight, between a justice and his or her clerks. in fact, justice o'connor really liked to fix up her law clerks. nothing made her happier than a marriage between two clerks. and she called the children of her law clerks her grand clerks. she was very tight with her clerks. and once a supreme court law clerk, sort of always a supreme court law clerk. as some of your viewers might know, it's an incredibly difficult job to get. each chamber has four clerks, nine chambers, four clerks, 36 -- and then a couple for the retired jus diss. so -- justices. so not many people can hold
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these jobs. they last for just one year, and typically a justice will hire a person who has graduated from law school and then clerked for a lower court judge. and there are certain feeder judges. judges who are known in the business of being really thinking, intellectual judges who might send clerks their way. so it's a very prestigious, limited spot. you have a lot of -- the young clerks have a lot of face time and interaction with justices. the justices rely on these people to help them with drafts, help them with research. and, again, this is an incredibly insular institution which is why when justice sotomayor came on the scene, you know, there were some sparks flying. but she will even herself hire mainly from other lower court judges' chambers. she's not breaking the mold.
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clarence thomas tried very hard to hire people who aren't just from the ivy leagues. he says i want to go from the top student who might have graduated from the university of georgia, i want to go more others. and justice byron white was that way too. he liked young beyond the ivy league. so it is -- you're getting the elite of elite students in all chambers, and i would say including in justice sotomayor's chambers. she certainly has her own elite markers with princeton and yale. and all of them do now, you know, because we're not talking about anybody who attended anymore even north western, and northwestern's a very fine school, but that's where justice john paul stevens had gotten his law degree, and he was the last of the non-ivies for a while. >> host: i don't know if you did this on purpose or not, but on "breaking in," i noted two significant references to the ivy leagues. number one that justice sotomayor chose an ivy league school on purpose -- >> guest: she did. >> host: -- and that it has
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become so exclusive. >> guest: she, see, this is where i understand how much she appreciates having those markers. she's not going to lose her puerto rican identity. but, boy, when she had the opportunity to go to princeton or an ivy league undergraduate, she was going to seize it. and then she told me once she had had that experience and realized how important that was just, not just for the learning, but the credential, she was not going to go to a law school that was not in the ivy league. others might have thought, you know, my degree's from georgetown, i went at night, there are plenty of other people who have been on the supreme court at different times who had perfectly fine legal credentials without the stamp of the ivy league. but she, even as a young woman in her 20s, was not going to change course once she got to an ivy league school. and she now add vies young people -- advises young people, get the best education you can, the best credentialed education you can.
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go into hock, do what it takes, get it. because she's realized how in some of these more elite, snobby worlds that can make a difference. now, it's, it doesn't always matter, certainly. i don't think that -- i can imagine in the next couple of confirmations that we'll have somebody that went to a state school. i mean, that would be okay, you know? it would really be okay. but right now there's something else going on that seems to place a pretty high value on certain selective schools. >> host: back to "breaking in," the experience of clarence thomas at yale, the experienceover sonia sotomayor -- >> guest: right, right. clarence thomas wrote in his own memoir called "my grandfather's son," about how painful it was, how he felt like he didn't get a very good education, that everyone there at the time and then afterward thought that he got in only because of affirmative action and he
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wrote -- i use some of his passages from his memory in -- memoir in this book about how he felt as if he was really mistreated by people who thought they were doing him some good by taking him under certain conditions and also signaling to others that maybe you might not be as credentialed as white students who had graduated from yale. i hi it was a pretty painful -- i think it was a pretty painful experience. i do know that he has gotten over a certain degree of it enough that he has gone back to yale now. for a long time, he would not go back to yale x. in october, mid october -- or maybe it's october 25th -- a reunion weekend for the yale law school, justices sotomayor, alito and clarence thomas will all be together at yale. and all three had very different experiences, the most notable would be clarence thomas who at the time really felt like the school had let him down in some way. >> host: joan biskupic is our
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guest. mike in kingston, north carolina, thanks for holding, you're on the air. >> caller: thank you for taking my call. i've got a three-pronged dialogue here. first of all, i definitely side, i read online that 73% of the public -- 71% of the public feels there should be term limits for the supreme court as well as the congress, and i agree. they're totally political, especially in the last years and totally reflect the background of those who aspire or get elected to the courts. so i think there should be term limits. and then my second, second prong is i think there's no -- you're making, and i think the news media has been the biggest purporters of this -- and this is my opinion -- there is no such thing as same-sex marriage no more than you can marry two bolts to two nuts. there's no such thing as abortion rights no more than anybody has right to take another person's right that made
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it outside the womb. and my last comment -- and thank you for accepting -- is i think that, and this is, hopefully, a constructive criticism, i think that both on washington journal and here you spend way too much time just talking, talking, talking instead of getting the social media or the telephone calls. just like the visit to the author's house. nothing wrong with that, but i think a lot of people would buy the book -- which i recommend -- and read it instead of spending so much time on glorifying the people that you have on there. and i thank you for taking my call. >> host: thank you, sir. any comment for that caller, joan biskupic? >> guest: well, i liked it. i liked, especially, the part that he's still going to buy the book. [laughter] so that's good. that's great. and he raises -- i'll go right to the touchier ones. look, same-sex marriage the phrase we're going to use because they're two people of the same sex. you know, some people call it gay marriage, you know, people
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use all different phrases. and the polls are showing that the american public has come to accept that more than before, but i am mindful of the fact that right now only 19 states and the district of columbia actually allow gay men and lesbians to get married. you know, 31 states it's still illegal. the it's a very real issue out there, and even though i am one of the people who actually thinks the supreme court is about to take that up, there's a chance they might not. they might feel like the country is not ready for them to take it up yet. so i think it's always good the hear from people who don't like the trend as it's going, because it's a bit of a reality check sometimes on the east coast. but it's also, it's something that we're constantly monitoring. we are constantly polling on this. and there's not a story that i write on same-sex marriage that i don't mention that it varies out will in terms of public
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support. but i think there is no denying that public support has really, taken off for allowing it. and whether the justices will declare that there is a constitutional right to marry, we'll know in the next couple months. >> host: roger, decatur, georgia, hello. >> caller: hi. joan, thank you so much for remembering father dryman. >> guest: oh, yeah. yes. >> caller: early on in the show you said but this is washington. and washington is really social, okay? so i'd like to know with whom the justices socialize. and i'll do the easy ones, leave you the hard ones. we know ruth bader ginsburg's a culture vulture, and we hear that justice breyer hangs out in georgetown which for me means sally quinn, and we know that justice thomas likes nascar, but his wife's well connected, and,
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you know, john roberts is definitely well connected. so when they go out, who do they go out with, who do they hang with, who do they listen to? >> host: roger, why is that important to you? roger's gone. sorry about that. >> guest: okay. well, what i know is limited, of course, because they're not hanging out with me. [laughter] so i can tell you what i pick up on, and i'll start at the top. you know, look, the chief justice of the united states, john roberts, is raising a couple of youngsters, so he's hanging out at, you know, hockey rinks, hanging out at places where his kids will be, but then, but he also, of course, has longtime connections here in washington with people from, you know, the late '80s and '90s who were in the reagan administration, who are part of, as roger would recognize, some of the elite legal club. so he's hanging out with them in some way socially, but he's also someone who's raising two kids, so he's got that on his plate. justice sotomayor lives in a
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really neat, up and coming area -- or it's not up and coming, it's already come -- area of washington, d.c., and elena kagan, and they both bought in this region. and so they're doing, they're going out to restaurants with their pals, they're mixing with folks who they knew at earlier points in their life. elena kagan has been in washington a long time, and she was, you know, back and forth between here and up at harvard and the town of chicago. but they're all hanging out with friends from past experiences and here in washington. when you, when they're -- according to the court, they're usually older in life. justice kagan was reported at roughly age 50, but she was a youngster and still is the youngest member of the court. she was born in 1960. but the others are older, so their social groups are established, and that's a little bit about what roger's getting at, is that they're not branching out to that many new
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people. they're sort of is sticking with the folks they know. .. >> guest: the experience you're about to describe, you know, i'm from the south side of chicago. i don't even think we have the walmart there now. a walmart did just come to washington, d.c., to inside the district. but for those of us who live deep in the city, walmart isn't as much of our marker. but it is for him. and i think that's neat that he's out there all the time in his motor home. and he likes to travel out westh and down south. so they all have their different pails. i'm trying to think of anything notable for roger to say about
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any of these justices that he might not -- >> host: do they pal around together besides --geth >> guest: not as much. a >> host: besides scalia and ginsburg. >> guest: justice o'connor was the one who instituted the ideas that after oral arguments, they all eat together at lunch. and justice souter was like i don't want to, but she would say, now, david, you come with us. so she didmy that x she thought that was really important. she was also the kind of person who said it's 30r7b to shaketant hands -- important to shake hands, it's important to touch people because you can connect with people that way. she was constantly organizing field trips for her clerks andi for her fellow justices. i would say there's not that kind of person on the court right now, but they do do things together. .. justices. the newest justice. they do social things and celebrate each others birthday with a little wine conference. so there you have it.
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>> host: in fact in your book on sandra day o'connor you write that one of her conditions did not get circulated on time. this is the reason why. apparently her tennis game with first lady barbara bush this morning and luncheon appointment precluded her final precirculation review. next call comes from joseph in pittsburgh. next call from joseph in pittsburgh. you are on booktv on c-span2. you with us? >> according to the supreme court, to be appointed, according to the constitution to be appointed to the supreme court you simply have to be knowledgeable in law, not necessarily an attorney. do you foresee down the road a person who is not an attorney being appointed to the courts
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and one other thing. the -- the basket is an allusion to st. thomas more. >> guest: that is right. a major hero of justice scalia. thanks for filling that in. the quote you read were not my words, it was a clerk. >> host: just as blackman wrote that. >> guest: i know it wasn't me but wanted to make sure. somebody was criticizing her social calendar and again, thank you to the calendar for the reference to sink thomas more. it has been many years since i attended the red mass. >> host: non lawyers in the court? >> guest: i can't even remember the last non lira but he is right. you do not need a lot degree to be on the consumer cream course.
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for a lot of reasons. first of all law degrees are a dime a dozen. lot of people have law degrees now and you can have experience with your law degree and that is what these other justices of the past did have. earl warren had a lot degree and he was a governor. you had -- you had a lot of variations with a law degree and additional legal experience. i would endorse what the caller is saying about broadening the experience but to just talk about -- to not have a law degree in this day and age it would be hard to get to speed. is very hard for some of these new justices to get to speed anyway just because of the court. >> host: would you comment on the court's relationship with
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congress? was that difficult? >> guest: it varies among justices. some lead and tin and scalia, that is the branch eaton to working. he worked in the executive branch and works in the third branch, the judiciary so he is never really liked the messiness of congress and how laws that made. justice stephen briar worked for a ted kennedy on the senate judiciary committee. he helped write the legislation for the sentencing commission, helped write the legislation that deregulated the airlines. justice briar appreciates the congressional process o individual justices have different relationships with congress in terms of understanding and appreciating the work of congress. isn't it funny we use the word appreciate the work of congress and we think of how polarized has been in recent years but they are different that way. elena kagan worked for senator joe biden when he was chairman
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of the judiciary committee and ruth begins dirt was being feted for her seat so she has an appreciation of congress. and how the court reads the work of congress and understands it and interpreting the law. the majority of the justices take a look at legislative history and to try to understand what congress wanted to achieve in a lot. justice scalia says let's just look at the black-and-white letters of the law and we would interpret that and say what benefits are out there based on that law. it is a different regard for congress at different times depending on the issue and there is tension among the branches and in some ways that can be very healthy because they are supposed to be checks on each other, but for the machinery to run smoothly there should be an understanding of the constraints the branches are against.
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>> host: is the supreme court supplicant to congress? >> guest: the supreme court doesn't have money. it can't enforce its rules. it doesn't have the power of the paris. it doesn't have the power of the sword. it has only its own institutional authority and that is why the justices as a group can be quite nervous about how they might appear because they don't want to compromise -- i am talking ideals. they don't want to compromise the integrity of the court because it doesn't have power. it doesn't have enforcement power, it doesn't have money so people are going to follow its rulings, people have to believe in it and that is what it has spent the chief -- who i have
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known, i have never covered earl warren but we do have up -- didn't cover the earl warren, a camp at the end of the william renquist year and mainly covered william rehnquist and john roberts. all of those men took seriously the concerns about engendering a i public regard. they care about public opinion. they try not to show it in their rulings or their public speeches but they want the public to believe in the institution. >> guest: >> host: they come to congress for money. >> guest: in a way that is very minimal. the federal judiciary budget through the commerce justice the subcommittee, but it is in a minimal way and they can't have -- congress has only limited way to cut down its jurisdiction and
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only limited way to affect its salaries and not at all. >> caller: i want to talk about the supreme court. section ii article iii of the constitution says congress will decide how the supreme court is set up. jefferson really had a problem with i think it was john marshall in the early 1800s on the fact that the supreme court should not be the final tribunal of all was made and enacted by congress and signed by the president. after jefferson died, turned around and made them the final say on everything when the constitution doesn't say is that. it was supposed to have three equal branches. if the supreme court doesn't overturn it they have no power. they do have power because they can mold the constitution into anything they see fit and basically we don't have a
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democracy we have an oligarchy because you have nine people who weren't elected sitting there for life. i don't care if they are there for life but they were the weakest part of the three branches. now all of a sudden nobody ever questions what they did because the first couple decades of our republic nobody ever thought the supreme court would turn around and overrule any law that was already passed. i was curious. >> host: we got the point. >> guest: she raises -- it is timely which he just raised. use obviously referring to marbury vs. madison in 1803 when she justice john marshall, the court wrote that the supreme court is the final arbiter of what the law says and that was a very big deal that has endured today, that is what gives the supreme court its authority to
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say what is in the constitution. to mention to the caller the federal statute congress can always go back and rewrite the statute to rewrite the constitution as we know. what she is referring to is the fact that in terms of what the constitution says the supreme court does have the last word and it was the doing of the john marshall the rat and at the supreme court the most prominent piece of sculpture is john marshall seated, a beautiful bronze peace on the ground-floor level that chief justice john roberts used to touch the toe before he went to argue. it is quite a statement there because the statement that john marshall -- >> host: your book about warren burger, the truth was his personal style inspired rivalry.
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some of the other justices thought he is a bee and switch technique to control the opinion writing assignment, he sometimes would waive his turn to speak first in the justice conference and then the vote that would decide would have a majority that would give him a senior member to assign the writing of the opinion of the case. >> guest: that was him. he did that. nice that you brought that up because there were personality differences among these justices. when he was on the accord warren burger -- when he left in '86, that triggered the succession, william rehnquist becomes chief, and we had some unusual personalities, tricky personalities throughout history and warren burger came from a d.c. circuit i referred to earlier, became chief justice in 1969 and he had a very strong
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personality and his colleagues got wise to his techniques and they would watch out for each other but since then the word on william rehnquist and john roberts is game playing that kind of nature and there's an awful lot of power in the authority to assign it opinion because the chief can decide how why or narrow it might go depending who he gives the opinion to. it is a good deal of power and maybe it could be abused in otherwise but in terms of fairness i am not hearing it all, those kinds of comments about william rehnquist or john roberts that recirculated with warren burger. >> host: pat riley e-mails our justices ast legal scholars using their abilities to promote the agendas of their political party? how else to explain so many
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5-4s? >> guest: she probably did that with a little bit of irony. you try to take him or her, you realize there are a lot of factors at play and politics is one of them. i would be the first to say. i would never go as far as what we referred to earlier in the discussion. i tried to guard against cynicism about some of the things i see but i think her suggestion is exactly right. politics can enter the mix. archaeology can enter the mix, personal experience enters the mix, lots of things enters the mix and some of the justices would be night that anything does and other justices would say of course. we are all human but we are trying to take the most neutral
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and partial routes that is based on precedent. >> host: the next e-mail is from robert in las vegas and he puts up a warning. loaded question below. do you think the supreme court will select another president? >> guest: those are great times to be a supreme court reporter. don't know how great it was for the country but for 30 days they were pretty heady and exciting, but no. i think that happens only once every century and that half. is not going to happen in his lifetime or mine or anybody connected with the program right now. >> host: he is going to the political motivation question we saw earlier. >> guest: here is the interesting thing about that. it was divided politically in
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terms of 5-4 but you know who was on the majority, sandra day o'connor. people forget that the sandra day o'connor in december of 2000 voted with the majority to cut off the recounts in florida at assuring that george w. bush got into the white house over al gore as vice president so it was a big moment, a huge moment, politically charged moment. when five justices who generally have not really favored the federal government over states, essentials stopped action in a state and four justices from the opposite side went in different direction, there are lots of complaints about that ruling in many ways. for justice o'connor who became my first subject i think she was quite chastened by the public outcry actors that and that
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added a bit to the moderation we saw in her later years. >> host: there was another decision in that case, 7-2 decision in bush versus gore. was that a more significant case? >> we get bush versus gore in december of 2012--the two parts of it. the main part is the recounts continue in florida, should the florida supreme court decision allowing the recounts to continue stand, or is the nation against a couple different deadlines. it was an electoral college issue. that was an equal protection issue and the issue was the
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standards being used in florida where fare? standards for recounting, remember hanging chad's? we all remember that. most of your viewers will. the way these ballots are being counted, is it being done fairly and are the standards in place? the supreme court, the key part of the bush versus gore opinion was 5-4 to stop the recounts and reverse the florida supreme court but there was another element in the mix and it wasn't really a hard vote. wasn't hard and fast 7-2 vote but seven of the justices did question the standards being used to count the ballots and the couple liberals swung over. said that there were problems with how these ballots were being counted. they thought the florida court should set some standards. they didn't want to cut them off. could that be what you are
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remembering? what happened then. it goes into how does the journalists cover these things? former secretary of state baker if i am remembering right went on the air, said there was the 7-2 ruling and liberal justices believe that the standards are not right in florida. came at 10:00 on that night and it was a little crazy but at least we got it right about what they did. there was some question about the 7-2 business and the 7-2 business was not a vote in terms of who should win or lose but more of an issue having to do with the standards in place, and the most important part of counting ballots. are there certain standards for how we regarded hanging chad to do we count it as in? do we count it as out?
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does it count for al gore or george w. bush or pat buchanan who was on some of these ballots so that was what we might be remembering and it actually played all little into the mix. i got a lot of calls from editors that many republicans were saying asserting that action will be the court ruling was an 5-4. it was 7-2. basic import ruling everyone is remembering was 8-4. >> host: kate in sacramento, good afternoon. >> caller: thanks for taking my call. i enjoyed the show. i have enjoyed it over the years. justice ginsberg, for many reasons, primarily more recently, seeming evolution from a low key judicial instrumentalist to 8 visible object for the liberal wing of the court. the wahabi lobbied dissent.
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were you surprised by that dissent and do you have any planned biography of ruth beta ginsburg? thanks for your time. >> guest: ruth beginsburg is fascinating. she was born in 1983. gee came of age as justice o'connor did but instead of trying -- she argued 5 of 6 cases before the supreme court-tried to make changes and she did but she came up as an advocate. then she becomes a professor at rutgers and eventually at columbia i believe and she becomes the the judge on the court of appeals when she gets to know justice scalia and she
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is appointed in 1993 by bill clinton. a very cautious jurist in many ways but what happens and what the caller is referring to, demonstrative liberalism emerges as she becomes more vocal as senior member of the liberal wing. when john paul stevens left the court in 2010, ruth beginsburg -- ruth better ginsberg was dissenting opinions on the losing side and the caller refers to the hobby lobby dissent which was quite powerful but the year earlier, her dissent in the shelby county voting rights case that she took months to write and took a lot of pride in. we have seen her much more outspoken than she ever was but in part that comes from her new
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role as the senior liberal on the bench. there are biographies in the work about ruth bader ginsberg and they have been in the works for a long time. but sheet is a really interesting figure who deserves continued national attention. >> host: joan biskupic, your new book "breaking in: the rise of sonia sotomayor and the politics of justice" which he spent four years on, contract publication. so what is next? >> guest: this is time consuming too. it is hard to write a book and hard to sell a book. you saw one book at a time. i go to bookstores and law students and reuters because it is a great little printer chat monday which is not my john rau i have to say, tweets are not my easiest -- >> host: hard for you to stick to 140 characters? >> guest: very hard.
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you can do that one of two things, one of 15 so people keep following what you are saying. i will do that tomorrow. on october 6th. >> host: if people want to join the twitter chat with is the address? >> guest: i should have said that first. hash tag ask reuters. between 2 and free, october 6th, and they explain, is. i have to do that for an hour. my mantra today was talk for these three hours and write short tomorrow. i am going to speak to some people's there, going to new york city to meet events at the new york city historical society museum saturday, october 11th i think it is. a couple book festivals this
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time of year in miami and tampa st. pete. it is fun, and many of the bookstores in 2005 argon. somewhere in 2009 and not a lot more are gone. i do a lot of radio and a couple weeks or a couple months. >> host: joan biskupic, like asking who is your favorite kid, who is the most fun to write about? or the most interesting? >> guest: of finding about their life and times. justice o'connor was interesting because she was in an era and the part of the country i did not have a lot of familiarity with. i didn't know what her ranch world was like and it was fun to go to powell also, stanford
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campus, and fun to know her brother who showed me all around and it was a delight to go through legislative files and find things she had done so she was exciting, she was my first subject that i had great interest in what she is up to. justice scalia was more difficult because he was more difficult. i have always been intrigued by him, the true reagan revolution. justice o'connor was not in the station of the reagan revolution even though she was an appointee of ronald reagan so i was interested in movement, the movement scalia was part of and how that emerged in america and how liberals have tried to counter it and with justice sotomayor it is not a straight biography but more the political history. i've learned so much about the
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trajectory of latinos. i always knew the basic civil rights era that african-americans inspire but to learn more about the role that latinos play and what was going on in her life at the time was fascinating and her role in that. she was not an advocate in the mode of and the team or thurgood marshal second-generation. so that was interesting to me. i cannot directly answer your question about who is my favorite. >> host: clair, you are on with joan biskupic. >> caller: thank you so much for taking my call. my next question, i have two
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questions about the 2000 bush versus gore election. is it true that james baker brought john roberts down to florida early on during the recount problem and of course we know ultimately that john roberts was appointed by president bush not only to the court but as the chief justice, that is my first question. my second question is is it true, this determination is the only non precedent setting determination that the supreme court has made in its history? i would appreciate hearing about that. >> guest: good questions. john roberts was on the legal team in florida for the republicans as were a host of other young republicans at the time. it was 2,000.
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he was into his career, pretty active as a republican in party politics even though he was in private practice, he had not been appointed to the d.c. circuit, he went on, he was nominated in 2001 right after president george w. bush took office and eventually ended up on that court, the d.c. circuit and the supreme court in 2005 so he was very much a part of it but lots of people were part of it. miguel estrada had a nominee, didn't get on. in my book i suggest that if he had gotten on the d.c. circuit, might have been in line for the supreme court, maybe sonia sotomayor would not be there today, it was such a big deal for the first hispanic. the threshold question about john roberts, at the same time the democrats pull their legal heavyweights in florida too, two
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stars battling each other and the democrats prevailed largely in florida and when we got up here the republicans prevail of course. her second question. >> host: the only non precedent. >> guest: she is reminding everyone. it could be president but is not cited by them. the joke is it was a train ticket for one ride only. you do not see a lot of references to bush versus gore in supreme court opinions. maybe we had one. basically they ruled and that was that. >> host: we talked a little bit about past connections and from american original, you write things, the 14 page opinion shepherded by scalia said nixon's recordings and white house documents were his personal property.
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>> guest: that was his opinion, as head of legal counsel. so we were in 74. we were in -- let's see, watergate is in june of '72, nixon resigned in august of 74 shortly before he resigned there was a big question, who owns the presidential material? in the early 70s, who is dying to be part of the nixon administration but scalia? he is in the office of legal counsel and he comes in -- i am trying to remember the timing. but he writes -- he is working in the ford administration. gerald ford was nick snaps vice president, takes over in august of 1974, the exact date scalia
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comes into the office of legal counsel, that is an important part of the justice department. he was an attorney general for that division and he is asked by president ford and his people what constitutionally who owns these papers. what has been tradition been? and he writes an opinion in the justice department saying that the papers belong to president nixon or any president and congress next that pretty quickly and of course we all so through court rulings, congressional action and all sorts of other wonderful measures that helped the public and reporters understand what went on during watergate, all the papers are not available, the tapes are wonderful things for any of your viewers to listen to at the national archives. they were a blast for me to go through in part because as watergate is happening and coming to head president nixon
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is also choosing the successors, to hugo black and john harlan in lewis powell and william rehnquist and all of his conversations about those choices are on the so-called watergate tapes. you can find out what went on behind the scenes from watergate what you don't know from movies already through actually listening to nick and on these tapes talk about things that you are right, justice scalia was with the executive branch during all that and he rooted for nixon until the very end. >> host: strategically speaking, this is an e-mail from bishop, why do you think justice ginsburg is not retiring to the president obama nominated adjust as when advanced stage she might not have more time left, the closer departure comes to the end of obama's term the less likely an appointee by president
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obama will be confirmed. >> guest: the e-mail there's exactly right. if something happened to her or anyone else over d. next couple months, the end of president obama's tenure i question to he could get through seriously. if she is -- she is 81. she is 81. justice kennedy and justice scalia 78. there is a chance -- they are not thinking about retirement but you never know what might happen. if president obama got a chance it would be difficult to put through anybody who was truly a liberal. her it is i will leave the political scene to somebody else, i feel i am strong, not slipping, the only thing that matters to me is can i do my job. and she saw john paul stevens last until he was 90 but it is a
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really big deal among liberals and the one who has -- there is an opinion piece saying you should step down, you should step down because of what is at stake for the court and the liberal legacy. >> host: portland, you are on booktv with joan biskupic. >> caller: my question, i think we still grapple with the ecb issues of state versus church. i say that because of growth versus wade which established that strongly, separate from church opinions that this shouldn't happen, the state is the will of the people so we still grapple with that. also the separation of powers, checks and balance, we grapple with that and how far have we come from the separation, we
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still -- to establish and balance that, we don't want the people to override the personal lives, how far we come from that? >> guest: it is a very tricky line when we talk about 55 and 4 decisions and their value of the controversies that lead to is then this is an area of the law that generates a lot of 5-4 decisions as the caller seems to know what has been happening at the court with various cases but i will remind others of one we had last term from the town of greece in which the issue was legislative france and how inclusive was the city council in terms of who got to say this prayer and the idea of potentially only having christian voice this at these city council meetings and by 5-4 the justices essentials gave city council, local governments
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more leeway to open council meetings and that was again by the conservative justices, protested by the liberal justices the three jewish members, it bears only not only how divisive it can be but how it plays into a lot of the religious divisions in america and the fact that it is a tough line for how -- it goes to the balance between everyone's free exercise of religion in the face of the constitutional mandate that government shall not establish religion and those two clauses can work with intentions at the supreme court. >> host: the supreme court is never as likely to go on racial policies and in an equally explosive area of the law he
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will likely never see the overturning of roe vs. wade, kennedy would block that. scalia will continue and losing side of gay-rights, and in upcoming years scalia could bring about more mingling of church and state and less government regulation of campaign financing etc.. this book came out in 2009. >> guest: it still stands up. that is true. >> good afternoon. my question is in terms of political rivals can you give examples of appointees to the supreme court that were potential political rivals and were appointed -- to kind of get them out of the way or a second part? had been any justices that have been impeached over the years? >> the first one, we had in some
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ways there was a question of whether president eisenhower put earl warren on the courts to get rid of a potential rival. that has happened. for our current crew i had to say i can't imagine the president thinking i'd better elevate that lower-court judge. the caller is thinking of a different era when we had more politicians on the court so a president would think about a political potential political flow at the supreme court. it has not happened at all really in our time. when president clinton was thinking of a big public figure in george mitchell, he wasn't thinking of let's get rid of political rivals. it just reminded me of something
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that comes up with bruce babbitt, and sandra day o'connor. it was bruce babbitt who was arizona's governor, back to the 70s, who actually named sandra day o'connor to the intermediate court that she got a run. there was a little talk about whether bruce babbitt was trying to renew a political rival in sandra day o'connor because she had at fantastic political background and was quite a politician, very effective in the state and coming to mind now, that was a flavor of it. samuel chase in the 1800s. i can't even think, we get a couple lower-court judges impeached since the 90s.
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lc hastings, walter nixon, does that sound right? i think i got that right. >> host: do you have a favorite supreme court justice from the past? >> guest: no, not really. the ones who are on the bench now i find more interesting in ways. the student of history -- the favorite doesn't quite work. favorite cases, cases that people always say what cases the law covering? in some ways bush versus quote was a great case to cover. there were many ways to depending where you sit but it was a great case to cover. there has been -- the word favorite doesn't seem to work. they are all somehow -- i find
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lots of cases interesting. >> host: rebecca in woodland hills, calif.. >> caller: hello. two questions. first of all in regards to the hobby lobby case that basically gives employers the authority to control a female employee's access to birth control, do you think that makes this court one of the most aggressive in women's rates in decades? even ruth bader ginsberg said so. and second my second question is in regard to the voting rights act and how it was recently struck down under the argument that racism is not really a problem anymore when it clearly is a problem. i was wondering if you think the ruling on that case, the voting
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rights act. >> host: how closely do you follow the supreme court? >> caller: i try to follow it fairly closely. >> host: y? >> caller: i went to law school and i'm a political science major. i am interested, i am very liberal so the court has become too conservative lately and that troubles me. >> guest: very good points and who would have thought in 2014 we would think about deeper gender divisions on the accord and in america? a couple of actions by the supreme court toward the end of the term revealed the bench split along those lines to some degree and the caller, rebecca was talking about the hobby lobby ruling that said -- involved closely held companies but essentially it could involve
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any corporation. if the owners have religious views, religious beliefs that wouldn't allow certain kinds of contraceptives that they should have the right to say that we don't want those contraceptives as part of our health insurance plan. the court found that was required under 1993 -- the religious freedom restoration act, 1990s religious freedom law these companies, hobby lobby had those rights and it was very disturbing to justice ginsburg and the other dissenters and there was a male, steven briar, among the dissenters but i thought that her opinion race a lot of the shoes from the 70s and 80s at and women's economic rights that rebecca was implying
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in her question, that women had come to depend on an array of contraceptive methods to be active players in society for their own economic control in this world and justice ginsburg was saying the court was going backwards on that. this is not the end of the issue. we are going to have either questions coming to the court involving the contraceptive mandate of theother questions coming to the court involving the contraceptive mandate of the obamacare law and another case this fall on the pregnancy discrimination act that deals with employers right to restrict when pregnant women are able to work on the job, you would think would have been answered before just because those kinds of issues have been out there for a long time but it is an important case, important to employers and has to do with
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a ups carrier, united parcel service, how heavy the packages were that she had to carry when she was pregnant and was accommodation could be made. these questions re-emerge and i wouldn't have predicted so many sex discrimination questions would be emerging at this time but they are. >> host: joan biskupic, if anyone reads your biographies of the supreme court justices will she come away saying she was complementary? >> guest: i actually know what people say because i have gotten ranges of opinion and i don't think anybody thinks i am hard on a justice. you got to deal with the extremes in everything. we talked about polarized courts, i have two figures that are quite polarizing. on the scalia one, my readers on
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the far left can't use it effectively? why so evenhanded? the early reviews on the sotomayor one use the word at my ring which -- i feel like people will think i appreciate her differences but i know some people think that maybe the lens through which she should be seen should be more heavily ethnic and political and cultural which is the way i go at this one so just like rulings in the eyes of the beholder, i have to say i think most readers, the criticism is usually quite positive, people see me as being evenhanded toward my subject. >> host: en the sotomayor books you quote jeffrey rosen, head of the national constitution center in philadelphia, that he said the most consistent concern at this goes way back was that
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sotomayor although an able lawyer was not that smart and kind of a booby on the bench. >> guest: she still gets that and she knows she gets it because she counters it. it is important for me to take that on an to reveal it and not to run from it and not to ignore that criticism that indoors today, that she will when she is out giving public speeches try to counter herself and she said after she was approved by the senate as she got through the confirmation process was very painful for her to hear those kinds of comments and to have it suggested in other quarters and jeff rosen did not suggest this as other people have that she was not up to the job but she said it was suggested by others, that was very painful for her and she said why do you think that was that people said that?
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did it have to do with anything but the fact that i was hispanic? what i try to do in the book is to raise it and say this is what this woman is dealing with an this is what people say and this is how she counters that and has been effective or not effected. >> host: you get a angry but don't live in the angry. >> guest: yes. >> host: maria in san pedro, calif.. >> caller: i am a hard lefty in california but i admire many things about justice o'connor. i can't say that i don't. but i want to know -- she would never say she regretted her of those in board versus bush but i believe she has said she wishes the court had never taken this up. could you speak about that please? >> guest: of course and i really
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appreciate, i appreciate even though you identify yourself as of hard lefty's that you are open and interested in the conservative centrists o'connor. those other readers i really appreciate, those who can look broadly at how these justices emerge over time. you are right that what justice o'connor said is she wishes the court never had to take it up. she was shocked by the public fallout. she is the kind of person who as i said once she makes a decision whether it is personal or in the law says that is my position and i am moving on and won't second-guess my get self. she is not second-guessing herself but if she could replayed that election she wished it hadn't been that close and ended up in their laps. >> host: greg in athens, alabama, a few minutes left. >> caller: thank you for taking
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my call. conservatives to some degree, interested in the dynamic mr. justice sotomayor brings to the court in terms of the difference that existed there for so long. elena kagan talked with reverence about coming in to the court and how she deals with people, she can be fiery at times but i wonder how different justice sotomayor is in regards to her actions on the court and how she deals with more conservative justices. thank you. >> guest: good question. i am glad you have the opportunity to talk about how her personal style might play in rulings. bottom line on the justice sotomayor is she is a product of structures herself, structure and form and precedent. he was on the federal bench for 17 years before she became a supreme court justice, she even
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said to me i am not a rabble rouser. she is trying to do things in the supreme court in a lawyerly judicial way. she might be shaking up the place in a personal way and she might be out there on the stump with her own memoir and all her speeches in a way that is different from what other justices have done but when it comes to the law she is looking at president first. she is trying to deal with her colleagues through the usual channels. i have a couple incidents in the book i found out from behind the scenes that show her making more waves than we would have known but even what we know from her public statements, she is interested in process and where she is breaking off from the majority and even broken off from her liberal colleagues is to bring more prospects to criminal defendant appeals.
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i wouldn't even put her in the role of thurgood marshall. she is not a next-generation advocate, but she is first and foremost gentle. >> host: how would you describe john roberts? >> guest: a lot of ways. he is interested in tradition and going through channels. in making sure things look just right. he is actually quite a public speaker, quite a -- >> host: c-span has covered him. >> guest: he has a great sense of timing. he cuts a positive public presence from the bench. he used to argue, he argued 39 cases.
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he is a very effective advocate for himself. as i said he is pretty button-down individual. roman catholic, he is from indiana, child of a father who worked for a steel plant, was an executive. he is one of three or four children, the only boy in the family was two three sisters, he went to harvard for law school. he is playing a long game. he is very smart. i am always surprised when he says something that seems out of character because i think he really can keep it in check. i think that there are some questions about whether he might take some baby steps over to the left. he is definitely not the conservative that samuel lobby know is or that scalia and
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clarence thomas are but where he fits in the center how much will align with anthony kennedy and how much will align more to the right, a very open question. >> host: does he have strong friendships on the court? >> guest: he would make sure those relationships are good. he understands that that is part of being chief, being an administrator and trying to make sure that all his colleagues feel they are being treated fairly in terms of the courts and the assignment. es a lot of attention to those relationships. a few years ago in indiana, i know you are a native. i covered a seventh circuit legal conference and he was the opening act for elena kagan. she was going to be speaking and he gave some remarks. she is very liberal and he was
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only favorable. he had his usual sense of timing and she gets up and says i am supposed to follow that? he says the right thing and i would recommend that people look at some of his rulings in the last term for signs of where he might i be exactly -- hard right conservative. look at june of 2012 ruling in the obama health care law case. >> host: jody in venice, calif.. we have a minute left. >> caller: you say the court is insular and almost shy, yet a few justices and political conventions and fund-raising events and on the outside that looks awful. >> host: can you name an instance where you know about this? >> caller: the clarence thomas and i believe scalia went to a
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koch brothers strategy convention in palm springs. samuel lido was seen at a republican fund-raiser, there is even footage of it and reporters tried to stop him as he was leaving to talk to him that he was scooted down the back. >> host: any liberal justices attend the set of meetings? >> caller: not that i know of but i don't want to appear that this is a partisan question. i just wonder if there is going to be any move in the court to at least use the same rules for ethics that the district court judges -- >> guest: this comes up from time to time. the justices are not supposed to attend fund-raisers. it is part of their own internal rules. the caller hit on something having to do with ethics rules, the supreme court justices operate on their own rules, they don't follow all the rules, they
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say they are effectively following, but they are their own masters and they don't usually attend fund-raisers. they try not to. there have been instances where they have been at conferences where political strategizing was not going on. but that kind of controversy comes up through the years and they wisely try to avoid sending those signals because all they have is their integrity. if people doubt their integrity -- >> host: did samuel toledo attend a political finishing? >> guest: she might be referring to the federalist society meeting they have spoken at, that might have had a fund-raising -- candy koch brothers thing if i am remembering right, the caller might have lifted those scripts, these justices were not in on
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any political strategizing but offered as a keynote speakers for larger conferences. >> host: can they make outside income? >> guest: do they make outside income? she made $3 million off of her book. justice scalia made tens of thousands of of all these books that is in coordination with thompson reuters. maybe i'm getting risky croutons and reuters, i don't know. maybe they can make unlimited in come off of their books and many of them are authors. there's a 7 limits for what they take their speaking and it is $25,000 usually. >> host: joan biskupic, joan is the web site,
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biographies on justices joan biskupic, sotomayor and o'connor. >> c-span created by america's cable companies 35 years ago and brought as public service by local or cable satellite provider. >> john you, author of point of attack and bruce fein, author of constitutional peril, the the war, foreign policy, use of drones and meaning of the constitution. ..


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